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Siemer in contempt again?

By Steven | October 20, 2009

Yet another chapter is written in the Vince Siemer saga.

In this episode, Vince decides that a High Court order suppressing publication of a decision doesn’t apply to him. The decision concerned some pre-trial rulings in concerning the Uruwera defendants, so it’s pretty big deal. Justice Winkelmann suppressed the decision, it seems, out of concern that publication may prejudice the conduct of a fair trial. Finding material of interest in the decision, Vince publishes it on his website. In response to the Soliticitor-General’s demand that he remove it, he argues that the judge had no right to make the suppression order.

On October 9, the Solicitor-General obtained a court order requiring him to remove it. When I last checked, he hadn’t. Looks like he’s in contempt of court again.

The case illustrates once again Vince Siemer’s unerring knack for identifying deficiencies in our legal system, as well as his galactic talent for overblowing his case and infuriating the judiciary.

As usual with Vince, there was nothing straightforward about the case. He supplied a notice of opposition but said he’d be out of the country for the hearing and asked for it to be deferred. On the one hand, it really is important that criminal defendants (which is effectively what he is) be given a fair chance to make representations in their own defence. On the other hand, the court can’t be a hostage to Vince’s travel timetable – and it was, after all, considering the enforcement of a court order that was already in existence and being breached with every extra day that passed. In addition, Vince could have rustled up a lawyer to represent him.

Anyway, he sent in submissions. He said he had the right to publish under s14 of the Bill of Rights. The judge could only override this with “clear and compelling legal reasoning” – and the suppression order contained no reasoning at all. There could be no right for the judge to arbitrarily keep the public ignorant of what was happening in the courts, particularly given the public interest in the contents of the judgment. He said he’d published nothing that could jeopardise the right to a fair trial. The public release of factual Court judgments is inherently non-prejudicial, he argued.

As usual, Siemer badly overstates his legal claim. This made it easy for the judge to bat aside his submissions. The High Court certainly does have power to suppress its decisions when necessary in the interests of justice. This was confirmed recently in Paraha v Police [2008] NZAR 581, as the judge noted. The Bill of Rights doesn’t prevent this. What’s more, it’s not inherently non-prejudicial for Court judgments to be made available. Consider, for example, a judgment that rules some evidence of confession inadmissable because it was obtained by coercion. If the jury could learn of the confession through the media, that would plainly prejudice the trial. What’s more, Vince forgets that these restrictions are not permanent, but only apply until the trial is over. The public is not being barred from seeing this judgment forever.

But that’s not the end of the story. Because, as usual, in the middle of Vince’s outraged pontificating, there are some solid points, I think. He is effectively mounting a collateral challenge to the validity of the suppression order, and the judge treated it as such. There are some arguments he could have advanced that may have made the judge sweat more:

1. While the Bill of Rights cannot override the court’s power to make a suppression order in the interests of justice, it seems clear that the discretion to make such an order must be exercised consistently with the Bill of Rights – that is, only when it is demonstrably justified under s5. Would publication of the judgment really have jeopardised a fair trial? (I don’t know; I haven’t read it). In any event did the judge really need to suppress the whole decision to protect the fairness of the trial? Would a less restrictive order have sufficed?

2. Vince was probably wrong to say that his publication creates no prejudice. I think it probably does. But any prejudice is to the Crown, not the defendants. Is it in the interests of justice to prevent such prejudice? Probably so. But it would have been interesting to see the judge grapple with the dicta from Solicitor-General v W & H Publications Ltd [2003] NZLR 12, at para [27], where the Chief Justice and Morris J said:

It is not at all clear however that there is reciprocity of effect upon trial where publications are sympathetic to the accused, rather than adverse. The submission made by the Solicitor-General that sympathetic publicity about the accused is the “flip side” of adverse publicity, and equally prejudicial to the administration of justice, does not echo in experience. No doubt some such symmetry seems intuitively fair as between prosecution and defence. But the fairness to be considered is the fairness of the administration of justice.

3. In the Lewis case (remember the name suppression of the American billionaire caught bringing in drugs on his yacht?), the Court of Appeal said it was an error of law not to provide reasons for the suppression. There seems a fair argument that this ought to apply with equal force here. Vince did point out that no reasoning had been provided. The judge simply said that such suppressions were “made on a daily basis in the Courts throughout New Zealand, in the context of the determination of pre-trial hearings, or in the determination of appeals where a retrial is likely… on the basis that the publication of the material in whole or in part prior to trial, has the potential to prejudice the conduct of a fair trial”. I’m not convinced that such suppressions are quite that common. (Name suppressions are, but those are not usually made to avoid prejudice to a fair trial). Suppressing publication of the whole content of a decision involves an exercise of common law powers that go beyond the suppression that’s authorised by statute (which allows suppression of submissions and evidence)… the scope of various courts’ powers to prevent media reporting has in recent years been the subject of litigation, including the recent Paraha case above. In short, I can’t help wondering whether the judge (who incidentally is the next Chief Judge of the High Court) is being a bit blase about the suppression here, and the failure to explicitly justify it in s5 terms. For all that, as she does explain in this judgment, there may well be good reasons to suppress material in the judgment: if it discusses evidence that may well end up being ruled inadmissible, for example. Again, though: does this apply to the entire judgment?

Still, I doubt the result would have been different if these arguments had been made.

Next step: another application for a warrant to commit him for contempt?

Topics: Contempt of Court, NZ Bill of Rights Act, Suppression orders | No Comments »

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